Challenge of Voter ID Law Comes Into Focus

By Bill Dries

The way to a court challenge of Tennessee’s voter identification law from Memphis takes a few twists and turns away from the polling place.

Early voting expanded to 20 satellite locations Monday, July 16, after opening at Election Commission headquarters Downtown over the weekend. Early voting continues through July 28.

(Daily News File Photo: Lance Murphey)

And while Memphis Mayor A C Wharton Jr. as well as several attorneys outside City Hall say they are ready to make the challenge, it will depend on who is willing to not have their vote counted in the Aug. 2 elections after they present a Memphis library card as photo ID to election officials.

That could depend on how close the three countywide general election contests on the ballot turn out to be.

Wharton and City Attorney Herman Morris have taken the position in a 33-page legal opinion Morris issued in January that the photo library cards the city began issuing last month meet the requirements for a valid state-issued ID card for voting purposes.

Finding the right plaintiff will depend on what happens during the two days after a provisional ballot is cast.

“(A voter) may have standing if he’s just turned away without proper ID because he may not be able, for example, to come back within two days and bring additional information,” said attorney and former Shelby County Democratic Party chairman David Cocke. “When you get a provisional ballot, you’ve got two days to go down to the Election Commission and show with a voter ID or other proper ID that you are eligible to vote. And if you are stuck in the same situation where you don’t have a driver’s license and all you’ve got in that two-day period is that ID from the library, and they turn that down, then you definitely have standing to bring a cause of action for their failure to honor a proper state ID.”

Several political leaders suggest they or others may cast provisional ballots and then return to election officials again with the photo library card to make the legal challenge if the outcome of the unofficial election returns counted on the night of Aug. 2 won’t be affected by their votes. It depends on how close the races for General Sessions Court clerk, assessor and district attorney general are in the unofficial vote count.

“Generally in the law, you don’t look to legislative intent unless the plain language is ambiguous or if you are alleging there was some nefarious motive behind the scenes like racial discrimination. Neither of those two proceedings happened here,” said Shelby County Commissioner Steve Mulroy, an attorney, law professor and former U.S. Justice Department attorney who worked in voting rights. “There are at least two different places in Tennessee that define entity of the state to include municipal governments or a library.”

If someone shows up at an early voting or election day polling place with a photo Memphis library card and presents that as their identification to vote, election officials have been specifically instructed by the Shelby County Election Commission to ask for other forms of state and federal identification state officials say they consider valid. If the voter doesn’t have those or doesn’t offer those, election officials are to then offer the voter a provisional ballot. The ballot is sealed in an envelope and the voter then has two days to present the identification state election officials say is required or the vote is not counted.

If the vote isn’t counted, that voter could then have legal standing to challenge the state law on the grounds that the photo library card is a valid form of identification.

Attorney Don Donati framed a likely legal challenge as a challenge to include the photo library card in the state law.

“If the Election Commission decides that they are not going to honor the city library cards, I suspect that we will be involved in litigation to make the state recognize those identification cards come the November elections,” Donati said.

Attorney Bruce Kramer, representing the Tennessee American Civil Liberties Union, indicated a two-front challenge of the photo voter ID law is possible.

“Our board has authorized us to challenge both the underlying state statute and to support the city attorney’s opinion provided we find the right plaintiff,” he said. “You need standing. But we have been authorized and we will challenge the state law.”